1. The Plaintiff avers in her plaint that she took out an insurance cover with the 1st defendant against third-party claims. The policy, referenced as policy No. 04031532, was in respect of motor vehicle registration number KAZ 535U, owned by her at the material time. While the policy was valid, the said motor vehicle was allegedly involved in a road traffic accident with motor vehicle registration number KBL 522C on 15th May 2016. The said accident was the subject of a civil suit, to wit, Mombasa CMCC No. 2451 of 2019; Fredrick Mwendwa Musyoka v Peninah Mukethi Kilunge.
2. The suit in the court below was undefended. As a result, an ex parte judgment was delivered on 10th April 2019, vide which the plaintiff was required to pay KES 265,457 plus costs and interest. The plaintiff in the court below sought to execute against the plaintiff in this cause. The plaintiff avers that her requests to the defendant to settle the decree have fallen on deaf ears, notwithstanding that it is contractually bound to indemnify her under the third-party policy in place at the material time.
3. The plaintiff contended that the declaratory suit she filed is the only means of compelling the defendant to honour its contractual obligations. The plaintiff thus seeks a declaration that the defendant is obliged to settle the interested party’s claim against the plaintiff pursuant to the judgment delivered in Mombasa CMCC No.2451 of 2018, Fredrick Mwendwa Musyoka v Peninah Mukethi Kilunge. She also seeks costs and interest.
4. The plaint was filed together with an application dated 7th April 2025. The said application was not opposed and was allowed on 28th April 2025, pending the hearing and determination of the main suit. At the time of the delivery of this judgment, the said orders are subsisting.
5. Despite being served, the defendant and the interested party never appeared or filed a defence or any other document. The matter therefore proceeded as an undefended cause. It was heard on 30th September 2025. The plaintiff, Peninah Mukethi Kilunge, relied on her witness statement dated 7th April 2025 and the documents she annexed to that application, which were exhibited. The court directed the plaintiff’s counsel to file written submissions.
6. The submissions of the plaintiff’s counsel are dated 8 October 2025. The court has had the benefit of considering them.
7. I note that the plaintiff purchased an insurance policy (number 04031532) on 29 January 2016. The cover was for the motor vehicle KAZ 535U Nissan Van. The interested party obtained a judgment of KES 265,457 against the plaintiff herein and was awarded costs. It is evident that the interested party is in the process of executing against the plaintiff.
8. The suit was undefended. That notwithstanding, I must determine if the suit has merit. Is the defendant under an obligation to indemnify the plaintiff? Section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 of the Laws of Kenya states that:
“If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
Provided that the sum payable under a judgment for a liability pursuant to this section shall not exceed the maximum percentage of the sum specified in section 5(b) prescribed in respect thereof in the Schedule.”
9. The foregoing provision of the law is clear as day. In the case of Joseph Mwangi Gitundu v Gateway Insurance Co Ltd [2015] KEHC 5025 (KLR), Gikonyo J. stated as follows:
“Therefore, under section 10(1) of Cap 405 Laws of Kenya, the insurer has a statutory obligation to pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. The obligation is statutory and a strict one; it cannot be shifted or abrogated by a term in the contract of insurance or in the manner proposed by the Defendant, lest the noble intention of the Act to guarantee compensation of third parties who suffer injuries arising from by use of the insured motor vehicle on the road should be lost. Similarly, if the statutory obligation placed by law on the insurer was to be shifted to the insured as proposed by the Defendant, the purpose for taking out an insurance policy and the compulsion by the Act for such insurance cover to be taken out on vehicles to be used on the roads to cover third party risks under Cap 405 Laws of Kenya will also be defeated. The only legal way liability and obligation to pay third party claims may be avoided is by strictly following the prescriptions provided for under section 10 of Cap 405.”
10. I am satisfied that the plaintiff proved her case on the balance of probabilities. Her evidence wasn’t controverted. Under the circumstances, the orders that commend themselves to me are as follows:
1. A declaration is hereby issued that the defendant has the obligation to settle the claim of Fredrick Mwendwa Musyoka against the plaintiff arising from the judgment and decree in Mombasa CMCC No.2451 of 2108; Fredrick Mwendwa Musyoka v Peninah Mukethi Kilunge; and
2. Costs and Interest at court rates.
11. It is so ordered.
Dated and signed in Nairobi this 6th day of May 2026. Delivered virtually through Microsoft TEAMS.
2. The suit in the court below was undefended. As a result, an ex parte judgment was delivered on 10th April 2019, vide which the plaintiff was required to pay KES 265,457 plus costs and interest. The plaintiff in the court below sought to execute against the plaintiff in this cause. The plaintiff avers that her requests to the defendant to settle the decree have fallen on deaf ears, notwithstanding that it is contractually bound to indemnify her under the third-party policy in place at the material time.
3. The plaintiff contended that the declaratory suit she filed is the only means of compelling the defendant to honour its contractual obligations. The plaintiff thus seeks a declaration that the defendant is obliged to settle the interested party’s claim against the plaintiff pursuant to the judgment delivered in Mombasa CMCC No.2451 of 2018, Fredrick Mwendwa Musyoka v Peninah Mukethi Kilunge. She also seeks costs and interest.
4. The plaint was filed together with an application dated 7th April 2025. The said application was not opposed and was allowed on 28th April 2025, pending the hearing and determination of the main suit. At the time of the delivery of this judgment, the said orders are subsisting.
5. Despite being served, the defendant and the interested party never appeared or filed a defence or any other document. The matter therefore proceeded as an undefended cause. It was heard on 30th September 2025. The plaintiff, Peninah Mukethi Kilunge, relied on her witness statement dated 7th April 2025 and the documents she annexed to that application, which were exhibited. The court directed the plaintiff’s counsel to file written submissions.
6. The submissions of the plaintiff’s counsel are dated 8 October 2025. The court has had the benefit of considering them.
7. I note that the plaintiff purchased an insurance policy (number 04031532) on 29 January 2016. The cover was for the motor vehicle KAZ 535U Nissan Van. The interested party obtained a judgment of KES 265,457 against the plaintiff herein and was awarded costs. It is evident that the interested party is in the process of executing against the plaintiff.
8. The suit was undefended. That notwithstanding, I must determine if the suit has merit. Is the defendant under an obligation to indemnify the plaintiff? Section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 of the Laws of Kenya states that:
“If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
Provided that the sum payable under a judgment for a liability pursuant to this section shall not exceed the maximum percentage of the sum specified in section 5(b) prescribed in respect thereof in the Schedule.”
9. The foregoing provision of the law is clear as day. In the case of Joseph Mwangi Gitundu v Gateway Insurance Co Ltd [2015] KEHC 5025 (KLR), Gikonyo J. stated as follows:
“Therefore, under section 10(1) of Cap 405 Laws of Kenya, the insurer has a statutory obligation to pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. The obligation is statutory and a strict one; it cannot be shifted or abrogated by a term in the contract of insurance or in the manner proposed by the Defendant, lest the noble intention of the Act to guarantee compensation of third parties who suffer injuries arising from by use of the insured motor vehicle on the road should be lost. Similarly, if the statutory obligation placed by law on the insurer was to be shifted to the insured as proposed by the Defendant, the purpose for taking out an insurance policy and the compulsion by the Act for such insurance cover to be taken out on vehicles to be used on the roads to cover third party risks under Cap 405 Laws of Kenya will also be defeated. The only legal way liability and obligation to pay third party claims may be avoided is by strictly following the prescriptions provided for under section 10 of Cap 405.”
10. I am satisfied that the plaintiff proved her case on the balance of probabilities. Her evidence wasn’t controverted. Under the circumstances, the orders that commend themselves to me are as follows:
1. A declaration is hereby issued that the defendant has the obligation to settle the claim of Fredrick Mwendwa Musyoka against the plaintiff arising from the judgment and decree in Mombasa CMCC No.2451 of 2108; Fredrick Mwendwa Musyoka v Peninah Mukethi Kilunge; and
2. Costs and Interest at court rates.
11. It is so ordered.
Dated and signed in Nairobi this 6th day of May 2026. Delivered virtually through Microsoft TEAMS.